SCA & RILLING

[2019] FamCA 74

FAMILY COURT OF AUSTRALIA

SCA & RILLING [2019] FamCA 74

CHILD ABDUCTION – prima facie case of wrongful retention admitted – whether return will expose child to grave risk of harm or expose him to an intolerable situation.

CHILD ABDUCTION – Direct judicial communication.

CHILD ABDUCTION – independent children’s lawyer.

CHILD ABDUCTION – specialised Hague mediation – free of charge to the parties.

JURISDICTION - orders made for parenting arrangements immediately on return – recognition by operation of law under Article 11 of Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Evidence Act 1995 (Cth)
Family Law (Child Abduction Convention) Regulations 1986
Family Law Act 1975 (Cth)

Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51

APPLICANT: State Central Authority

RESPONDENT: Mr Rilling

INDEPENDENT CHILDREN’S LAWYER: Ms C Smith

FILE NUMBER: MLC 14538 of 2018

DATE DELIVERED: 15 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 and 15 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: Legal Services Department, Department of Health and Human Services, State Central Authority

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms D Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Order

1. The Application of the State Central Authority filed 17 December 2018 be granted, and the child X (born … 2013) (‘the child’), be returned to the United Kingdom pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986, the United Kingdom being the child’s state of habitual residence.

2. Subject to paragraph 4 of this Order the Respondent Father accompany the child back to the United Kingdom no later than 11:55pm on 22 February 2019, and for that purpose:

   (a)The Respondent Father purchase tickets for him and the child, travelling by air from Melbourne, Australia, to City B, United Kingdom with any stop-overs to be in countries that are signatories to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

   (b)The Respondent Father provide a copy of the tickets for himself and the child and details of the itinerary to the Applicant State Central Authority, Independent Children’s Lawyer, and mother by 5pm Tuesday 19 February 2019 and, after so doing, be and is hereby restrained from causing permitting or suffering the reservations to be altered without the consent of the Applicant State Central Authority or order of the court;

   (c)If the Respondent Father has complied with paragraph 2(b) of this Order above, the passports of the child currently held by the Registrar of the Family Court of Australia pursuant to Order 5 of the Order made on 17 December 2018 be released to the Respondent Father upon the request and presentation by him of this of this Order and the letter of consent from the solicitors for the State Central Authority.  It is sufficient confirmation of compliance with this Order for the Applicant’s solicitors to provide a letter to that effect.

   (d)The mother reimburse the cost of the child’s flight from Melbourne to City B to the Respondent Father in the amount of up to £250, such payment to be made promptly on the child’s return to the United Kingdom.

3. I reserve the liberty to apply in relation to implementation of paragraph 2 hereof and the mechanics of the return of the child to the United Kingdom.

4. If the Respondent Father does not return the child in accordance with paragraph 2 of this Order:

   (a)The Respondent Father be hereby restrained from accompanying the child on any subsequent flight upon which the child returns to the United Kingdom, and

   (b)The Respondent Father is hereby restrained from attending at or within the vicinity of the airport, with the child or within 5 hours of the child’s departure from Australia; 

   (c)The passports of the child currently held by the Registrar of the Family Court of Australia pursuant to paragraph 5 of the Order made by this court on 17 December 2018 be released to the solicitors for the applicant State Central Authority forthwith to be provided in due course to the person who will accompany the child back to the United Kingdom.

5. Pending the child’s departure from Australia for return to the United Kingdom, the Respondent Father by himself, his servants and/or agents continue to be restrained and an injunction issue restraining him, his servants and/or agents from causing or permitting or suffering the child:

   (a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

   (b)to be removed from the State of Victoria; and/or

   (c)to reside at any place other than his present residential address or any other residence at which the Applicant has agreed that the child may reside;

   (d)attend at any school or educational institution other than the school or institution at which the child is enrolled.

6. Paragraph 5(a) of this Order remains in force, until a letter from the Applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to the United Kingdom AND IT IS REQUESTED that the Australian Federal Police remove the name of the child X, male, born … 2013 from the Airport Watch List upon presentation by the father for boarding the nominated flight to the United Kingdom on the date nominated for the said travel.

7. A sealed copy of this Order be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

8. The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.

ON THE ORAL APPLICATION OF THE MOTHER FOR ORDERS AS BETWEEN HERSELF AND THE RESPONDENT FATHER, IT IS FURTHER ORDERED BY THE COURT

1. Leave is granted to the Mother to make an oral application via audio-visual link for the parenting orders and I relieve each party with compliance with the Family Law Rules 2004 in relation to filing and service of documentation.

2. The Mother’s address for service be noted in the records of the Court as C Street, D Town …UK (“the mother’s residence”) and her email address be recorded as: ….

3. Upon the child’s return to the United Kingdom and until orders are made by a court in the United Kingdom:

   (a)The child live with the Mother and the Respondent Father deliver the child to the Mother forthwith upon arrival at the airport in City B.

   (b)Commencing seven days after the child is returned, the Respondent Father to have access to the child:

   (i)     Every Tuesday and Thursday from conclusion of school, or 3:30pm if the child is not at school, until 7pm;

   (ii)    Every Sunday from 9am to 4pm; and

   (iii)     Any other time agreed between the Respondent Father and Mother.

   Otherwise, and save as is provided in paragraph 12 of this Order,  the Respondent Father have no access to the child for the first 7 days immediately following the child’s return to the United Kingdom.

   (c)The Respondent Father is to be responsible for collecting the child from school at the commencement of the access provided for in paragraph 11(b)(i) hereof and for collecting and returning the child to the Mother at the front door of the mother’s residence for all other changeovers. 

   (d)Save for in the case of a medical emergency, neither parent cause , permit or suffer the child to be taken to a psychologist, psychiatrist or like health  professional except for Dr E, General Practitioner, unless otherwise agreed between the Mother and Respondent Father.

   (e)Both parents be and are hereby are restrained from any physical chastisement of the child.

4. Notwithstanding paragraph 11(b)(iv) of this Order, if the Respondent Father produces to the Mother proof of a return airline ticket for himself to Australia prior to the expiration of 7 days following the child’s return to the United Kingdom, the Respondent Father may have access to the child for four hours on the day prior to his departure at times to be agreed between the Mother and the Father.

5. The Independent Children’s Lawyer to provide a copy of the child’s immunisation records for the child to Dr E, the Respondent Father, and the Mother.

6. Liberty to the parties to apply in relation to implementation generally.

7. The Mother and the Respondent Father do all acts and things necessary to ensure that the child is enrolled and attend at F School as soon as possible after his return to the United Kingdom.

IT IS FURTHER ORDERED BY THE COURT

1. For the avoidance of doubt any documents in this proceeding may be referred to or used by the Mother or the Respondent Father in parenting proceedings in the United Kingdom.

2. The oral evidence of Ms G given on 14 February 2019 be transcribed and when transcribed released to the parties.

3. The Independent Children’s Lawyer be granted leave to forward to the D Town Children’s Service a copy of:

   (a)This Order;

   (b)My reasons for decision;

   (c)The Family Report prepared my Ms G, Family Consultant,  dated 22 January 2019;

   (d)The transcript of Ms G’s oral evidence; and

   (e)The immunisation information pertaining to the child.

4. The father be at liberty to remove the child from the child minding room.

5. Otherwise the application of the State Central Authority filed 17 December 2018 is hereby dismissed.

AND IT IS NOTED that the parenting orders contained in paragraphs 11, 12, 13 and 15 of this Order are urgent orders within the meaning of Article 11 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and it is accepted by the parents that they will be recognised in the United Kingdom accordingly.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority and Rilling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 14538 of 2018

State Central Authority

Applicant

And

Mr Rilling

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application made to reg.16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) for the return of X (“the child”), born in 2013, to the United Kingdom.

2. The Regulations import into Australian domestic law the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”).

3. The child is a citizen of the United Kingdom and of Country J.  The application is brought at the behest of the child’s mother, Ms H (“the mother”), who is a Country W national with permanent residency in the United Kingdom.  The respondent father is Mr Rilling (“the father”), who has dual Australian and Country J nationality.

4. On 18 December 2018, I appointed an independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). As such, her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1]  The independent children’s lawyer is not a legal representative retained by the child and she is not bound by any instructions from the child.[2]  The independent children’s lawyer’s function is circumscribed because of the limited nature of Hague return proceedings and the fact that the return would not be preconditioned on the child’s best interests.

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

5. The role of the independent children’s lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  In Hague return cases this includes contending any exception to return which can be properly invoked notwithstanding that it may not be contended for by the respondent.  The independent children's lawyer is under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]  In Hague return cases this involves the independent children’s lawyer pointing out to the respondent weaknesses in his or her opposition to the application with the intention that these proceedings are not prolonged by arguments which are doomed to fail and the child’s immediate future can be determined as expeditiously as possible.  Finally, the independent children’s lawyer is an “honest broker” as between the respondent and the applicant and, where possible, the respondent and the requesting parent.  She is responsible for arranging a specialised mediation for the parents at which they may seek to resolve the issue of return and, very importantly, to limit the issues and encourage each parent to prepare for outcomes.  Each parent should prepare for the outcome that is unfavourable to him or her as well as for the outcome they seek.  If the parents have negotiated their respective fall back positions, the proceedings will be concluded with minimal uncertainty for the child.  

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

6. The respondent father concedes that his retention of the child in Australia on 4 September 2018 was wrongful within the meaning of reg. 16(1A) of the Regulations. That is, that the child’s state of habitual residence is the United Kingdom, that the mother has rights of custody, the father’s retention is in breach of those rights of custody. The return of the child to the United Kingdom is mandatory unless the father can satisfy me of one of the five exceptions to return under reg. 16(3) of the Regulations. Of those, he relies only on reg. 16(3)(b), being that there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

7. If I was satisfied that the child came within an exception to return, such as the grave risk exception, I would have a discretion not to return the child to the United Kingdom.  In the exercise of that discretion I can have regard to welfare considerations relevant to the child whilst at the same time giving weight to the policy behind the 1980 Convention.  That is to return children who are unilaterally removed or retained out of their state of habitual residence to that home state so that arrangements may there be entered into in relation to their parenting either by agreement, acquiescence or determination by a court or a combination of any or all of those. 

8. In this matter, having considered all of the evidence, I am not satisfied that the grave risk exception applies to the child and have therefore ordered that the child be returned promptly to the United Kingdom. 

9. The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) is in force between the United Kingdom and Australia.  I have made some parenting orders which will be recognised in the United Kingdom on the child’s return by operation of law and apply until the court in the United Kingdom makes orders which cover the issues to which my orders relate.

Background

1. The mother is a student and employed in administration but has previously worked in her own business.  The father is a professional but also worked in the business with the mother.  The parents were married in Asia in 2013.  They separated in 2015 when the child was less than two years old.  At that time, they were living in the United Kingdom.  Following separation there were proceedings instituted in the Family Court in the United Kingdom in case number … under the Children Act 1989 (UK).  This appears to have been in early October 2015 and the father sought to prohibit the mother from taking the child out of the United Kingdom. 

2. The last suite of orders made in the United Kingdom entitled the father to have the child living with him from Sunday to Tuesday each week.  However, that parenting regime was not implemented because the father left the United Kingdom on 15 January 2016 to live and work in Australia.  The mother and the child remained in the UK. 

3. Since January 2016, the father has had extensive access to the child by agreement with the mother, as follows. 

   a)The father took the child to Australia and returned the child to the United Kingdom in early February 2016.  The father then remained in the United Kingdom until he commenced a course for his employment in City K in April 2016. 

   b)The father next spent time with the child when the father visited the United Kingdom for approximately one month commencing 6 April 2016. 

   c)On 5 June 2016 the father brought the child to Australia by agreement with the mother, returning him to the United Kingdom on 21 June 2016.  The father remained in the United Kingdom until 16 July 2016 when he returned to Australia. 

   d)The father travelled again to the United Kingdom on 9 September 2016 and remained there until 13 September 2016. 

   e)On 10 November 2016 the father collected the child from the United Kingdom and, with the mother’s agreement, brought him to Australia until 8 February 2017 when he returned the child to the United Kingdom and then returned to Australia to commence full-time employment with his current employer. 

   f)Later in 2017 the father had access to the child, again by agreement with the mother, from 22 July to 3 August 2017 and then for approximately seven days in November 2017 in the United Kingdom. 

   g)In 2018 the father visited the United Kingdom from 14 to 20 January and had access to the child.

4. The father’s evidence was that at all times when the father was in the United Kingdom the child was in his full-time care, and the child only spoke to the mother by telephone communication.  The father’s evidence was that he rented the same bed and breakfast accommodation and was solely responsible for the child’s care. There was no direct evidence to contradict this.  However, I am mindful that the parties to the proceedings, at the point of the father giving this viva voce evidence, were only the father, the applicant State Central Authority and the independent children’s lawyer.  The mother was neither listening in, nor present, to provide anyone with instructions or information to the contrary.

1. It is common ground that the mother agreed for the father to have the child in his care in Australia between July 2018 and 1 September 2018.  The father collected the child from the United Kingdom in July 2018 but did not return him on 1 September 2018 or thereafter. 

2. The mother completed a request to the International Child Abduction and Contact Unit in the United Kingdom in September 2018 and, in due course, it was transmitted to the Australian Central Authority.  The application was filed by the State Central Authority for Victoria on 17 December 2018.

3. On 18 December 2018 certain injunctions were made by this Court, without notice to the father, prohibiting the removal of the child from Australia pending the outcome of these proceedings, for the father to file documents in response to the application by 2 January 2019 and, as I have mentioned, the appointment of an independent children’s lawyer.  The specific tasks of the independent children’s lawyer were to remind the father of his obligation to deliver all passports for the child to this registry of the Court to be held in safe custody, to investigate whether the parents would consider mediation and to investigate the cost and mode of return of the child to the United Kingdom in the event that was ordered.  The application and ex parte orders were served on the father shortly thereafter.

4. The matter was before the Court on 4 January 2019 following the father having been served with the proceedings and the ex parte orders. The final hearing of these proceedings was fixed for 14 February 2019, the time in which the father could file his responding material was extended to 17 January 2019, a report was to be prepared by a Family Consultant attached to this registry pursuant to reg. 26(1) of the Regulations.

5. Family consultants are psychologists and/or social workers who are employed directly and exclusively by the family courts[5] and who specialise in child and family issues after separation and divorce. The task of the family consultant included:-

   [5]The family courts are Family Court of Australia and Federal Circuit Court of Australia.

   ·to make an assessment about the child’s wellbeing, generally;

   ·inform the court immediately if the child presented a child in need of immediate physical or psychological care;

   ·to provide an opinion on the appropriateness of the child having regular electronic communication with the mother as soon as practicable;

   ·to ascertain the child’s maturity and ability to make important decisions concerning his own life in light of the father stating to the court that the child was objecting to being returned to England;

   ·to assess whether the child presented as a child who had been the subject of family violence in the form of beatings, or physical chastisement or emotional deprivation, as contended by the respondent father.

6. The assessment and report writing undertaken by Family Consultants is without financial cost to the parties to litigation. 

7. The Family Consultant, Ms G (“the Family Consultant”), interviewed the child on 20 December 2013 and prepared a brief report dated 22 January 2019.  That report is common to all parties.

8. Ms G was cross-examined. She was a thoughtful witness who readily augmented the opinions expressed in her report. I accept her evidence and accord it weight.

9. The Family Consultant reported from paragraph 9 of her report:

   9. “[The child] presents as a young child of slender build with a mop of dark hair. He was friendly and engaged easily. It would appear that he is meeting his developmental milestones within expected parameters. He is able to write his own name and count to ten and beyond. Whilst his drawing of his family included basic stick figures, it was constituent with his developmental stage. Whilst he appears to have a very short attention span, not entirely inconsistent with a child of his age and stage of development, the child has well developed language skills and uses a wide vocabulary.

   10. He was interested in the environment, particularly with what he observed occurring in the street he could see from out of the window in the report writer’s office. He has a vivid imagination and readily engages in problem solving to achieve his desired goal at the time. For example when he identified that he wanted to fly down to the ground but was scared because it (the building) was so high, the child suggested he could use a parachute and if one was not available, he suggested he could use a (plastic) bag.”

   […]

10. In the Family Consultant’s evaluation of the specific issues in relation to Hague matters the Family Consultant wrote:

    23. As per Court Orders made on 04/01/2019, before the Honourable Justice Bennett, the following specific issues were explored during the meeting with [the child] […]

    If the Court orders that [the child] be returned to the United Kingdom, is there anything that would make the return easier for the child

    24. In response to direct questions about what, if any, worries he might have about returning to his mother’s care in the United Kingdom, and what needs to happen so he no longer has to worry, the child said: “I won’t be worried if mummy doesn’t hit me anymore.” Other than the physical discipline described [the child] did not identify any other concerns.

    25. When invited to consider if there was anything else that would make return to the United Kingdom easier for him, after some consideration and in between looking out of the window for trams, taxis and cement mixers, [the child] said: “I want daddy to be there” confirming he meant living in the United Kingdom.

    If the Court refuses the application for return is there anything that would make staying in Australia easier for [the child]?

    26. [The child] did not articulate any specific needs or wishes during the assessment that could be identified as making staying in Australia easier for him. During conversation, [the child] commented: “if I’m not allowed to stay here, I want to stay here. I will just have to go back to the UK but I don’t want that to happen…just because…just because of nothing.”

11. The parents undertook specialist Hague mediation on 4, 5 and 7 February 2019.  It was provided by Victoria Legal Aid free of charge to the parties.  The matter is not resolved, but the parents have been encouraged and facilitated to prepare for outcomes.

The Issues

1. Whereas the father originally said that he would rely on the child’s objection to return within the meaning of reg. 16(3)(c)(i)), he did not pursue that contention at trial.  That was sensible.  Notably, when the child was assessed by the Family Consultant, she was asked to consider whether the child’s objections (if any) show a strength of feeling beyond the mere expression of a preference or of ordinary wishes and whether the child has attained an age and degree of maturity, at which it is appropriate to take into account his view.  In her report, the Family Consultant observed [28]:

   Having just celebrated his fifth birthday, it cannot be considered that [the child] has attained an age and degree of maturity at which it is appropriate for his views to be accorded any significant weight. However his distress at being physically chastised by his mother should be noted and alternate forms of discipline will need to be implemented.

2. The father also did not pursue the contention that the Mother’s residence status in the United Kingdom is in doubt. 

3. The only issue was whether the child will suffer a grave risk of harm or otherwise be placed in an intolerable situation if returned to the United Kingdom.  The harm is said to be that the mother and her boyfriend hit the child on the bottom and on his face by hand and with objects such as a broom handle and a windscreen wiper.

The Law

1. The object of the Convention is to secure the swift return of children wrongfully removed or retained from their home country, not only so that they can return to the place which is properly their “home”, but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than the country to which they have been removed (as observed by Baroness Hale of Richmond in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 [48]).

2. The provisions of the 1980 Convention are incorporated into Australian law by the Regulations. Reg. 16(1) provides that if an application for the return of a child is made within one year after the child’s removal or retention and the responsible central authority satisfies the court that the child’s removal or retention was “wrongful”, the court must make an order for the return of the child.

3. Reg. 16(3) provides that a court may refuse to make an order for return if there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.  The authorities are settled and were uncontroversial before me. The risk to the child must be “grave”.  It is not enough for the risk to be “real”.  It must reach a level of seriousness that it can be reasonably characterised as “grave”.  “Grave” attaches to the risk rather than to the alleged harm, however, a grave risk of trivial harm will not suffice.  “Physical or psychological harm” are not qualified, but must be read together with the alternative “or otherwise placed in an intolerable situation”.  “Intolerable” is a strong word which, when applied to a child, must mean a situation which this particular child in these particular circumstances should not be expected to tolerate.  Reg. 16(3), which implements Article 13(b) of the 1980 Convention, looks to the future and what the situation would be for the child if returned to the country of habitual residence.  In particular, the situation in which the child will be placed once available protective measures in the state of habitual residence can be implemented. 

4. The onus of proof in relation to grave risk rests with the party asserting it, here the respondent father. The standard of proof is to a balance of probabilities pursuant to section 140(1) of the Evidence Act 1995 (Cth).

5. In these reasons, a statement of fact is a finding of fact.

The Conduct of this Hearing

1. The father appeared in person, Ms Harris appeared for the independent children’s lawyer and Ms Wilson of counsel appeared for the applicant State Central Authority.

2. The father conceded that his retention of the child in Australia on or after 1 September 2018 was “wrongful” within the meaning of reg. 16(1A) of the Regulations. Accordingly, the State Central Authority’s case was prima facie proved and the father effectively had the carriage of the proceedings about the grave risk exception.

3. The documents relied upon by the applicant State Central Authority were the application filed 17 December 2018, the affidavit of Ms H sworn on 28 September 2018, the affidavit of Mr L (as to rights of custody) sworn on 28 September 2018, the affidavit of the mother sworn on 26 November 2018, the affidavit of the mother sworn on 10 January 2019 and the affidavit of the mother sworn on 4 February 2019.

4. The father relied upon his form 2A answer in which was pleaded the grave risk exception, the father's affidavit sworn on 4 January 2019 which was filed on 4 January 2019, 10 January 2019 and 16 January 2019, the father's further affidavits sworn or affirmed on 11 February 2019 and on 23 January 2019.

5. The parties consented to direct judicial communication between myself and the International Family Justice Office in the United Kingdom to obtain copies of documents from the proceedings in the Family Court.  Those documents were received on 24 January 2019 and provided to all parties.  I express my appreciation to the Hague Network Judges in England and Ms M.

6. The father was cross-examined.  The father was not an impressive witness.  He is clearly worried about the child.  I do not doubt that he is genuine in his love and regard for the child.  However, he is self-focused and I observed that he does not consider the viewpoint of others, he is pre-occupied with his own views.  He endeavoured to portray himself as a victim of the mother and then of the judicial process.  He adopted a “woe is me” reaction to a prompt return of the child to the United Kingdom, within seven days, without apparent regard to the fact that he had been informed in the course of proceedings that his evidence did not appear to support an exception to return and, on his own evidence, he had seen “many barristers” who told him that he would lose this case.  My impression was that the father does not take adequate responsibility for his action and inactions.

7. The father elected not to cross-examine the mother.  I accept her evidence in this proceeding.

8. The Family Consultant was cross examined.  As indicated below, I accept the evidence of the Family Consultant. 

The Evidence Concerning Grave Risk of Harm

1. The father's evidence was quite general.  He deposed that, from 2017 onwards, the child repeatedly complained to him that his mother hit him on the face and on the bottom and, in 2018, that the mother's friend, Thomas, hit the child on the face.  It is to be noted that the father spent time with the child in 2017 and 2018 in the United Kingdom and Australia and returned the child to his mother’s care without application to any court.

2. The father filed a complaint with the National Society for the Prevention of Cruelty to Children (“NSPCC”) in late 2017 (exhibit “F2”).  He described an incident involving a bicycle during which, allegedly, the mother told the child to put down a piece of metal pipe, the child refused and the mother is said to have barked at the child, admonished him and raised the back of her hand to him.  The father’s evidence was that he saw fear in the child’s face.  The father was then convinced that the mother had been physically abusive to the child.  In oral evidence, the father said that he had never witnessed anything by way of physical mistreatment by the mother of the child but that the incident involving the pipe corroborated in his mind what the child had been telling him about being the child being hit by the mother on a regular basis. 

3. The father’s evidence was that, from the time the child was three and a half years old, he stated to the father, "Mummy does not treat me well".  In July 2017, the father said that the child told him that he was hit on the face with windscreen wiper blade by the mother and also with a broom handle.  At the time, the mother agreed that the father could have the child for access, from July 2018 to 1 September 2018, the father had been told by the child that the mother's boyfriend had also hit him in the face.  The father conceded that, save for the report to NSPCC in late 2017, he had not reported the matter to the authorities nor taken any action from Australia or in the United Kingdom to protect the child in the care of the mother.  His rationale was that, as at July 2018, he was removing the child from Australia to the United Kingdom where he was satisfied that he would be safe.

4. On 29 August 2018, the father wrote to the mother:

   “Hello,

   I have for over a year been aware of you hitting the child. We talked about it and you confirmed it, and seemingly moments later you demonstrate your aggression towards [the child], re the bicycle repair incident. My email to you also states the threat.

   Since then I have heard so many other areas and forms of abuse. I tell you that I am unhappy with the environment you provide for the child in the UK and all you are interested in is, “getting at me”, “taking legal action”. What about [the child]?

   If you take legal action you will win, no doubt and [the child] will then promptly be returned.

   [The child] will also be promptly returned if I am sure that [the child] will be treated fairly. Hence me asking for reassurance. No more hitting, no more abuse in any form and that’s all I ask of you. But you are so are focused on get at me [sic]. What you are doing is distancing yourself from [the child] and one day [the child] will make up his own mind. You are in the believe [sic] that you are in his favor, not so. As I keep telling you. […] None of what [the child] say’s is my doing. They are his feelings fears.

   What is it that you really want? Because nothing you say or do reflects the best interest for [the child].

   Mud slinging, “he said she said” is something that gets us NO where.

   My statement was, “Please give reassurance that [the child] will be treated well. No more physical or mental punishment/abuse”.  [The child] then will be returned immediately.

   I am sure that you wouldn’t have allowed me to have the child if you were concerned in anyway.

   Yes we talked about and agreed [the child’s] coming to Australia to live with me over the summer school holidays. But things have changed. [The child] has fears and concerns. Why can’t you help address these, for [the child’s] sake. Getting at me is far more important, that’s why. Hey, why not, I’m an easy target. You’ve set that up over the years with your fabricated reports on me. I can’t change that but there is something you can change. How [the child] feels towards his mum.

   Think about it. [Mr Rilling]”

5. As indicated, the father was due to return the child to the mother by 1 September 2018 but did not do so.  It is from this date that the child was wrongfully retained by the father.

6. There is no evidence that the mother admitted physical abuse of the child.  The father repeatedly asked the mother to admit that she had assaulted or inappropriately disciplined the child as a component of assuring the father that she would not engage in such conduct again. 

7. The father tendered a letter dated 4 September 2018 from Dr N M.B.B.S., FRACGP from O Practice, the letter states:

   “[The child] is a 4 year old boy who has been living in the UK with his mother as per previous formal arrangements made in the UK. He had been visiting his father [Mr Rilling] since 24^th of July – during this time [Mr Rilling] has become concerned re comments from the child regarding being hit with Strap, wiper blades and hand at his mother’s house where she lives with her boyfriend. This has included mention of being hit across the face.

   [Mr Rilling] did not note any bruises or injuries on the child’s arrival in Australia. The child is now enrolled in daycare/kindergarten in Australia twice a week and his return to the UK has been delayed due to hid [sic] fathers concerns.”

8. The above letter was not given in direct evidence by the doctor.  It is evidence of what the father said to the doctor and when he said it.  It not of the doctor’s observations or discussions with the child.

9. Ms Harris, for the independent children’s lawyer, tendered clinical notes (Exhibit “ICL 2”) that had been obtained by subpoena from clinical psychologist Dr P in a session the father had taken the child to on 19 December 2018.  Dr P’s notes record:

   “[…]

   When I asked [the child] how his mum hits him, he said ‘She hits me with a broom’ and clarified that this was a broom without the sweeping bit. I asked what part of his body she would hit him and he said his face and bottom. [The child] said ‘then I start to cry and go to my bedroom’. He also said ‘I never telled [sic] anyone’ when asked if he had spoken to anyone about his mum hitting him.

   I asked [the child] whether his mum hit him with anything else and he said that she would use her hand if she didn’t have a broom. When I asked whether he could remember how old he was when his mother first hit him, he was vague, initially saying two and then ‘she first hit me when I was three years and four years old’.”

10. The father did not adduce evidence from the psychologist. The psychologist was not able to be made available for cross-examination. On reflection, the use to which the record can be put is not clear to me. It is hearsay. It does not qualify as a business record because, by this stage and given the father’s reference to “legal action” in his correspondence of 29 August 2018, I am satisfied that it was a communication made or obtained in contemplation of an Australian legal proceeding within the meaning of s 69(3)(a) of the Evidence Act 1995 (Cth). Even if the document was rendered admissible, it would require to be tested given the apparent leading nature of the questions and the fact that the child had been in the exclusive care of the father for approximately 5 months. In all the circumstances, I accept the document as evidence of the father having taken the child to a psychologist but do not accept document, or accord it weight, as evidence of the truth of what the child is recorded as having uttered much less evidence that what the chid is alleged to have said did, in fact, occur.

1. The Family Consultant’s oral evidence was that she was careful to provide the child with ample opportunity to tell her about any incidents of abuse of him by the mother or the mother’s partner.  There was no disclosure corroborative of the father’s version of events.  The Family Consultant’s report records:

   12. When asked directly why he was in the city today and why he was talking with the report writer, [the child] said: “I want to stay here with daddy for ever but I’m not allowed to do that. Daddy said these people are going to help me stay in Australia. When asked directly why he wants to stay with daddy in Australia, and not be with mummy in the UK (as [the child] identified that is where he lives) he said: “because she can hit me sometimes if I get into trouble by not doing what I am told.”

   13. When asked where on his body his mother hits him, the child playfully patted his bottom. In response to further questions, [the child] indicated this happened “more than one time…um lots of times I think.” [The child’s] responses to further questions was that no one else has hit him and that he has only been hit on his bottom and only with his mother’s hand. When asked about his feelings in this regard he said he “feels sad and I cry sometimes when mummy hits me, and I go to my room.” When asked what makes him feel better, he said: “I give mummy cuddles.

   14. When asked what happens at daddy’s house if he is naughty or does not do what he is told [the child] said: “daddy talks to me…about being naughty and then I stop.”

   15. In discussion about who lives with him in his home in the UK the child said: “me and my mummy” In response to questions about his mother’s partner he said: “[Mr Q] lives in [Country R] and visits mummy sometimes.” Further comments included “…I go to nursery… it is so so big I don’t always like it there. Sometimes the children don’t want to be my friends…[S] is my best friend. He goes to the same nursery as me…but not now cos I am in Australia…[T] na [U] are my best friends in Australia…When daddy goes to work I go to kinder sometimes…the people over the road or next door or in the other house up the street look after me. Nanna lives in a different house in [Suburb V] it is very far away.”

   The Family Consultant’s evidence was that the child presented as relaxed, cheeky, playful and at ease.  At no stage did he say anything other than that his mother has hit him and she has only hit him on his bottom.

2. The Family Consultant gave evidence that her impression was that the mother had hit the child as a form of discipline or parental admonishment.  I asked if the child presented as remembering the incidents as brutal or hurtful and whether he was scared. She responded:

   When I asked about his feelings, he talked about feeling sad and crying sometimes.  And then when I asked what it is that would make him feel better and he said, “Cuddles with mummy.”  So he didn’t give me any impression that it was a brutal episode and he was adamant that it was only his mother who had hit him.  It was definitely on more than one occasion and – and he – he clarified and I asked him more than once, but he clarified it was only with – with his mother’s hand and it was only ever on his bottom, never on any other part of his body.

Conclusion on grave risk of harm

1. The father’s evidence of physical chastisement would be very relevant for a parenting dispute, as between parents, but does not constitute the kind of harm and grave risk required to qualify as an exception to return.  For what it is worth, I do not exclude the possibility that the father’s ideas of physical abuse are over valued and unshakeable.  The concomitant is that the father cannot be convinced that the child may be adequately cared for in the mother’s household.  The father’s quest to prove, through the child, that the child has been physically abused could impact negatively on the child’s emotional wellbeing if left unchecked.  Alternatively, the father’s allegations may be close to the mark.  I make no finding in that regard.

2. In sum, this family may well benefit from the scrutiny of domestic parenting proceedings from the perspective of the best interests of the child as soon as possible.  Until now, the parents have been parenting in parallel.  The father makes many allegations against the mother but not in a form or in a venue which allows the mother to engage with the allegations.

3. I am not satisfied, on the evidence, that the return of the child to the United Kingdom will expose him to a grave risk of physical or emotional harm or otherwise place him in an intolerable situation.  Accordingly, the return of the child to the United Kingdom is mandatory.

The return

1. On 18 December 2018 I ordered, inter alia, that unless the father admits that he has the financial capacity to pay for the return of the child to the United Kingdom, he file a Statement of Financial Circumstances in the prescribed form. The father did not file a Financial Statement.  On 4 January 2019 the father swore an affidavit in which he deposed, at paragraph 4, that pursuant to paragraph 5(c) of the order made 18 December 2018, “I say that I have the financial capacity to be able to pay for the return of [the child] to the United Kingdom should that be the Order of this Honourable Court”.  The father did not file a Financial Statement.  However, at the conclusion of the final hearing he said that he could not afford to pay for the return of the child and himself and sought financial assistance from the mother.  I was initially informed that the mother would contribute £500 and ultimately £250 by reimbursing the father in that amount upon the child’s return to the United Kingdom.

2. In fixing the time for return at seven days I took into account that the father had been on notice for a considerable period that his case in opposition to the application was weak.  The father is had more than enough time to prepare for the contingencies involved with the return of the child.  I also take into account that this is a wrongful retention of the most blatant kind. 

3. Finally I am not persuaded that prolonging the child’s time in Australia will be of benefit to him.  The family Consultant’s evidence in relation to the child’s return included the following:

   17. When asked about kinder [the child said]: “I don’t really like kinder except playing outside and we are not allowed out on wet days.” [The child] could not identify when he last attended kinder and when he will next attend.

   18.[The] child spoke about his recent birthday with chocolate cake and five candles. When asked who was present to celebrate his birthday, the child said: “everyone came to celebrate my birthday,” however did not further identify specific people.

   19.When asked directly if he saw his mother on his birthday the child have an audible sigh and said: “no she doesn’t want to visit me.” When asked whether he misses her the child immediately nominated in the affirmative and said “a little bit.” When asked to demonstrate with his hands how much he misses her, the child said: “I love her all the way from the earth to the edge of the visible universe and back. That’s a very long way. That’s how much I love her.”

   20.When asked about whether he misses daddy when he is in the UK with mummy and daddy is in Australia, the child again immediately nodded in the affirmative and said: “I miss daddy a lot. He talks to me on Skype all the time.”

   21. […]

   22.The Independent Children’s Lawyer advised the report writer that he has recently sought psychological counselling for the child, having become concerned about possible regression in [the child’s] behaviour, including bedwetting and attention seeking behaviour. Some consideration will need to be given to this reported behaviour possibly indicating that [the child] is becoming increasingly unsettled due to the uncertainty about his return to the United Kingdom and to his mother’s care.

4. The father informed the court that he and the child had waited for the mother to call the child on his birthday but the mother did not call.  My sense is because of the high degree of conflict between the parents, the longer that the child remains in Australia, the potential for him to feel abandoned by the mother becomes greater.  I am comfortably satisfied that it is not in the child’s best interests, nor in the spirit of the 1980 Convention, for the child’s time in Australia to be prolonged.

5. Given that the father initially said that he would pay for the child’s return to the United Kingdom but has now reneged, I will endeavour to avoid a situation whereby the date for return passes only to find that the father changes his mind requires the mother to come and collect the child.  I will allow the father to return the child to the United Kingdom within seven days.  However, if he fails or neglects to do so, the father will not thereafter be eligible to travel with the child back to the United Kingdom.

Parenting arrangements post-return

1. One of the matters open to the parents to discuss in the specialised Hague mediation, for which they had three sessions, was the post proceeding parenting arrangements that would apply for the child in the event of the child’s return or non-return to the United Kingdom.  Minimising the harmful effects of international parental child abduction is one of the purposes of the 1980 Convention and, almost invariably, that involves making the return of the child to his home state as easy and as child-focussed as possible.

2. Parenting arrangements post-return are a matter within the primary jurisdiction of the United Kingdom which is the jurisdiction of habitual residence of the child.  However, this court has subordinate jurisdiction by virtue of Article 11 of the 1996 Convention.  I am able to make orders which will be recognised in the United Kingdom by operation of law until such time as the courts there make orders of their own.

3. The Family Consultant gave evidence that it would be in the child’s best interests for him to have an uninterrupted settling-in period with his mother of approximately seven days.  I accept that evidence.  I also accept that after that settling, it would be of benefit for the child to see his father at regular intervals.  The father’s position was that he wanted to be able to see the child regularly immediately following their return to the United Kingdom.  Then the father said that he may be required to return to Australia promptly and he could miss seeing the child altogether.  The father would not commit himself to any particular course.  Indeed, my observation of the father throughout this proceeding is that he only divulged so much of his plans as he considered necessary to support the outcome he sought.  The father stated that he might return to Australia within days of the child’s return to England but he also said that it was possible that he would remain in the United Kingdom to pursue employment opportunities, in particular, a job interview.

4. I conclude that it is in the child’s best interests to have a settling in period with the mother and then see his father at regular periods thereafter until a court in the United Kingdom otherwise orders.  However, if the father does decide to leave England within the first seven days following the child’s return, I have provided the father with an opportunity to satisfy the mother of that fact (by showing the mother his airline ticket) and for the father to be able to farewell the child.

5. Absent the parents being able to agree on an appropriate course and seek orders in those terms, I am satisfied that the post return parenting arrangements which are to apply for the short period before the courts in the state of habitual residence become seized of this matter provide the child with predictability and stability of care and are, therefore, in the child’s best interests.

Use of documents

1. For the avoidance of doubt, the parents and any representative for the child may use or refer to documents prepared for the purpose of this proceeding in parenting proceedings in the United Kingdom without first obtaining this court’s leave to do so.

Conclusion

1. I am satisfied that the child was wrongfully retained from the United Kingdom within the terms of the Regulations on 1 September 2018. I have concluded that the exception or defence relied upon by the father has not been established. Accordingly I am required to order the child’s return to the United Kingdom forthwith. The parties have had some input into the specifics of the return which I have specified must take place within seven days.

2. The above reasons I make the orders set out at the commencement of these reasons

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 February 2019.

Legal Associate: 

Date:  21 February 2019